Citation Nr: 19191484 Decision Date: 12/05/19 Archive Date: 12/05/19 DOCKET NO. 14-01 347 DATE: December 5, 2019 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a liver lesion is denied. Entitlement to service connection for Hepatitis C is denied. Entitlement to service connection for a stomach disability is denied. Entitlement to a disability rating in excess of 50 percent for Post-Traumatic Stress Disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s left knee disability began during active service, or within one year of service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s right knee disability began during active service, or within one year of service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran’s benign liver hemangioma was incurred during active duty service or is otherwise related to an in-service injury or disease. 4. The Veteran does not have a current diagnosis for Hepatitis C. 5. The Veteran does not have a current diagnosis for a stomach disability. 6. The Veteran’s PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2018). 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2018). 3. The criteria for service connection for a liver lesion are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for Hepatitis C are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a stomach disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for an evaluation in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to January 1972. He received the Combat Action Ribbon, among other decorations, for his service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and August 2014 rating decisions of the VA Regional Office (RO). In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. These matters were remanded by the Board in February 2019 for additional development. The RO was instructed to schedule additional VA examinations for the Veteran and to attempt to obtain any relevant VA or private medical records for the Veteran. The record shows that VA treatment records were obtained, and that RO sent a letter to the Veteran in May 2019 asking him to identify any private treatment records that would be relevant to his claim and to complete a VA Form 21-4142 so that the RO could attempt to obtain those records. The record reflects that the Veteran did not respond to the RO’s May 2019 letter. The Board finds that the RO substantially complied with the Board’s February 2019 remand directives, the Board may proceed with adjudicating the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right knee disability The Veteran asserts that he has a bilateral knee disability as a result of falling approximately 40 feet off a cliff and down a mountain while on active duty. The Veteran has a current diagnosis of bilateral knee arthritis as evidenced by imaging which occurred in 2011. The Veteran was also diagnosed with a Baker’s cyst in 2011. The Board notes that arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The medical evidence of record reflects that the Veteran’s bilateral knee disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran underwent a VA examination in July 2019. The July 2019 VA examiner reported that the Veteran’s post-service medical records are silent for knee symptoms until 2003, approximately 30 years after separating from active duty service, when the Veteran reported knee pain. At that time, he underwent imaging tests which showed that his knees were normal. In 2011, the Veteran underwent additional imaging tests which showed that the Veteran had bilateral knee arthritis. The Veteran testified that after he fell while on active duty, he was taken to a hospital on the USS Sanctuary where his knees were wrapped in ice and treated with heat, and that he did sauna treatments for 30 days while remaining on the hospital ship. The Veteran further contends that, at present, his knees sometimes go out on him, and that he has difficulty climbing stairs and ladders. The Veteran testified that he sought treatment for his bilateral knee disability as soon as he separated from service in 1972 and was treated ever since service by different doctors for his knee pain. While the Veteran testified that he has had knee pain ever since service, and that he sought medical treatment for his knee pain shortly after separating from active duty, there is no record of the Veteran seeking medical attention within one year of separating from service. The Board notes that although the Veteran testified that he sought private treatment for his knee disability after service, he did not reply to the RO’s May 2019 letter asking for him to identify any private medical records which may exist and consent to the release of those records. An October 2011 Report of General Information indicates that VA attempted to contact Mount Carmel East Hospital, one of the facilities identified by the Veteran at his videoconference hearing, to inquire about the Veteran’s medical records. The hospital indicated that it maintains records for 25 years, and any records from 1974 would have already been destroyed. While the Veteran is competent to report having experienced symptoms of knee pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his currently diagnosed arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran also underwent a VA examination in July 2019. The VA examiner reviewed the Veteran’s contentions and medical evidence of record. The VA examiner confirmed that the Veteran has a current diagnosis for bilateral arthritis in his knees and opined that the Veteran’s arthritis diagnosed by imaging in 2011 is less likely than not due to the Veteran’s reported fall during service but rather was due to the Veteran’s age, as the VA examiner opined that there were no medical records indicating continuous symptoms of arthritis within one year of separation from service and as arthritis at age 45 and above is appropriate. The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to the Veteran’s age. Service connection for bilateral knee arthritis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s arthritis and an in-service injury, event or disease, to include the Veteran’s fall off a cliff and down a mountain during service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The July 2019 VA examiner opined that the Veteran’s bilateral knee arthritis is not at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reported fall. The rationale was that the Veteran’s arthritis was not diagnosed until 2011, almost 40 years after separation from service, and there is no medical evidence confirming the Veteran’s claims that he suffered knee pain since service. While the Veteran believes that his current bilateral knee arthritis issue due to his reported fall during service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence and the opinion of the July 2019 VA examiner. As the medical evidence of record shows that there was no documented continuity of symptomatology since service that is attributable to the Veteran’s bilateral knee disability, and as the Veteran’s bilateral knee disability was not as least as likely as not related to the Veteran’s service, to include his reported fall during active duty, service connection must be denied. 3. Entitlement to service connection for a liver lesion is denied. The Veteran contends that he has a liver lesion which is related to his active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of benign liver hemangioma and fatty liver disease, the preponderance of the evidence is against finding that either condition began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records are silent for treatment of a liver lesion. July 2015 and September 2015 hepatology consult reports indicate that Veteran had an abnormal result seen on an imaging test in 2007 and 2014 and follow up was recommended. The Veteran underwent imaging testing again in April 2015 and July 2015. The April 2015 imaging showed a possible mass and follow up imaging was ordered. The July 2015 imaging was compared to the 2007 imaging. The likely diagnosis was benign hemangioma and focal fatty sparing. A December 2016 gastroenterology clinic note indicates that the Veteran’s hemangioma is likely benign and no additional follow up was needed. There was no evidence of cirrhosis, and risk factors such as weight loss, exercise, and avoidance of alcohol were discussed. The Veteran underwent a VA examination in July 2019 related to his benign hemangioma and fatty liver disease. The VA examiner opined that the Veteran’s hemangioma and fatty liver disease were less likely than not incurred in or caused by his active duty service. The rationale was that the Veteran’s hemangioma was discovered, at the earliest, in 2007, approximately 35 years after the Veteran separated from active duty service. The VA examiner explained that a liver hemangioma is a noncancerous mass made up of blood vessels and that liver hemangiomas are congenital. The VA examiner also explained that fatty liver disease is seen worldwide and is the most common liver disorder in western industrialized nations. The major risk factors for this condition are obesity, diabetes mellitus, dyslipidemia, and metabolic syndrome. Thus, the VA examiner opined that the Veteran’s liver hemangioma and fatty liver disease are less likely than not incurred in or related to his active duty service. The Board finds the July 2019 VA examiner’s findings and the opinion to be competent and credible, and as such, entitled to great probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The examiner’s findings were based on a review of the Veteran’s claims file, solicitation of history and symptomatology from the Veteran, and physical examination of the Veteran. The examiner stated the rationales on which the opinion was based. Moreover, there is no competent and credible medical opinion to contradict the conclusions of the VA examiners. As such, there is no competent medical evidence to establish a nexus between the Veteran’s liver hemangioma or fatty liver disease to his active duty service. Therefore, the preponderance of the evidence is against finding that the Veteran’s liver hemangioma or fatty liver disease were either incurred in or otherwise related to his active duty service, and service connection must be denied. 4. Entitlement to service connection for Hepatitis C is denied. The Veteran claims that he has Hepatitis C which is related to his active duty service. The question for the Board is whether the Veteran has a current diagnosis for Hepatitis C that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records show that in June 1970, the Veteran was hospitalized for Hepatitis secondary to the drug Thorazine. A December 1970 hospital discharge note for a separate hospital admission for pericarditis indicates that the Veteran is allergic to Thorazine. The Veteran’s underwent a VA examination in July 2019. The VA examiner reported that the Veteran did not have a current diagnosis for Hepatitis C. The VA examiner reviewed the Veteran’s medical history, including the records indicating that the Veteran was treated for hepatitis secondary to Thorazine during service, and opined that the in-service condition was a temporary condition that was resolved after the Veteran avoided Thorazine. The VA examiner opined that liver tests conducted in December 1970 were normal, which documented that the Veteran did not have hepatitis at that time. The examiner also opined that there was no documentation of a diagnosis or treatment for Hepatitis C, and that lab testing conducted in January 2016 indicated that he did not have a diagnosis for Hepatitis A, B, or C. Further, the Veteran testified that his in-service Hepatitis secondary to Thorazine has now resolved and he is not being treated for the disease. The Board finds that the medical evidence of record demonstrates that the Veteran does not have a current diagnosis for any form of Hepatitis, to include Hepatitis C. In the absence of a disability during the appeal period, there can be no claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, in this case, the record shows only one potential diagnosis for hepatitis during service secondary to the use of a drug. After the drug was no longer administered to the Veteran, the Hepatitis resolved, and liver tests conducted later during service were normal. The July 2019 VA examiner conducted an in-person examination and reviewed the Veteran’s in-service records, including the in-service record of his Hepatitis secondary to Thorazine and post-service medical records, along with contemporaneous liver tests which were normal. Additionally, the Veteran testified that his Hepatitis was resolved. Finally, there is no medical evidence of record that the Veteran has received any diagnosis or treatment for Hepatitis since service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § § 1110,1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran has a chronic disability for him to receive service connection. In this case, the evidence shows that the Veteran does not have a current diagnosis for Hepatitis upon which to predicate a grant of service connection. Therefore, there can be no valid claim for that benefit. See Brammer 3 Vet. App. at 225; Rabideau, 2 Vet. App. at 143-44. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim of service connection for Hepatitis C, and the claim must be denied. As the preponderance of the evidence is against the claim of service connection for Hepatitis C, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for a stomach disability is denied. The Veteran claims to have a stomach disability related to his active duty service. The Veteran testified that he had stomach problems during service, that he “couldn’t keep anything down” and that he was constipated for 28 days during service. The Veteran further testified that he continues to have stomach problems and must take Omeprazole on a daily basis to prevent symptoms such as heartburn and acid reflux. He also testified that he has diverticulitis. VA treatment records show that he is prescribed Omeprazole “for his stomach” and that he has reported to at least one mental health therapist that he has been unable to eat anything since returning from Vietnam without his stomach hurting. Service treatment records indicate that the Veteran was hospitalized on the U.S.S. Sanctuary for “question of peptic ulcer,” but a December 1970 discharge summary notes his diagnosis was for pericarditis. The Veteran underwent a VA examination July 2019. The VA examiner reported that the Veteran did not have a current diagnosis for a stomach disability. Although the Veteran reported being treated for a peptic ulcer during service, the VA examiner opined that there was no confirmed diagnosis for a peptic ulcer during active duty service. The VA examiner opined that the Veteran’s post-service medical records confirm only the Veteran’s report that he was diagnosed with a peptic ulcer, but do not confirm a post-service diagnosis for a stomach disability or peptic ulcer. The Board finds that the medical evidence of record demonstrates that the Veteran does not have a current diagnosis for a stomach disability. In the absence of a disability during the appeal period, there can be no claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record shows that the Veteran reported a history of a diagnosis of peptic ulcer, that he was hospitalized for a “suspicion of peptic ulcer,” and that he takes a medication “for his stomach.” However, the VA examiner reviewed the Veteran’s medical records and opined that they do not confirm a diagnosis of a stomach disability or peptic ulcer, either in service or after he separated from service. There is no competent medical evidence to support the Veteran’s contention that he has a confirmed current diagnosis for a stomach disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § § 1110,1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran has a chronic disability for him to receive service connection. In this case, the evidence shows that the Veteran does not have a diagnosis for a chronic stomach disability upon which to predicate a grant of service connection. Therefore, there can be no valid claim for that benefit. See Brammer 3 Vet. App. at 225; Rabideau, 2 Vet. App. at 143-44. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim of service connection for a stomach disability, and the claim must be denied. As the preponderance of the evidence is against the claim of service connection for stomach disability, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to a disability rating in excess of 50 percent for PTSD is denied. The Veteran is currently rated as 50 percent disabled for PTSD. The Veteran contends that his disability is more severe than it is rated. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue before the Board is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The Veteran underwent a VA examination in July 2019. The VA examiner noted that the Veteran’s PTSD symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. The VA examiner noted that the Veteran also reported symptoms of feeling depressed and useless and having easy irritability, frequent nervousness and intrusive thoughts about experiences in Vietnam, a belief that people around him are watching him and talking about him. He also reported that 1-2 times per week he hears unintelligible voices that last for about 10 minutes, that he sometimes “zones out” while working on tasks, and that he sometimes forgets to eat. He reported passive death wishes but denied active intent or a plan to harm himself. The Veteran was competent to handle his financial affairs. The July 2019 VA examiner opined that the Veteran was “not considered to be a reliable reporter of information” as VA treatment records from the last several years do not reference auditory or visual hallucinations, and treatment notes from approximately two weeks prior to the July 2019 VA examination reflect that the Veteran specifically denied having auditory or visual hallucinations. The July 2019 VA examiner noted that, although the treatment notes do not reflect reports of auditory hallucinations, the Veteran testified during his October 2018 Board hearing that he heard voices that told him not to trust or talk to others. The July 2019 VA examiner also reported that the Veteran was fully oriented, had fair insight, impulse control, and abstract reasoning, and average judgment and intelligence. The VA examiner opined that the Veteran’s symptoms are moderate to moderately severe, but the VA examiner noted that several mental health professionals found evidence that the Veteran embellished or exaggerated his symptoms and suspected the Veteran of malingering. Regarding his employment history, the Veteran reported that he has worked as an electrician and welder and owned and operated a car repair and detailing shop. He also reported being employed by Lowe’s and Home Depot. The VA examiner opined that, even based on the Veteran’s self-reported symptoms, he could probably function in employment situations in which he was his own boss or worked alone with minimal oversight or correction. Overall, the VA examiner opined that the Veteran’s symptoms caused occupational and social impairment with reduced reliability and productivity. The Veteran also underwent a VA examination in July 2013. The July 2013 VA examiner did not diagnose the Veteran with a mental disorder and reported that the Veteran was alert and well oriented to person, place, time, and circumstance. Speech pace, intensity, and amplitude were within normal limits. The Veteran denied any active or passive suicidal or homicidal ideation, mania, or hallucinations. The VA examiner did not diagnose the Veteran with any mental disorder because the examiner opined that there was the continued presence of gross overreporting of functional impairments and systems which, in the examiner’s opinion, precluded a diagnosis for any mental disorders given the depth of inconsistent reports that exist in the Veteran’s medical records, including a former diagnosis of malingering. An October 2012 VA examiner also did not diagnose the Veteran with a mental disorder due to malingering. The Veteran reported a number of symptoms to the October 2012 VA examiner. However, as the October 2012 VA examiner found that the Veteran was malingering, a diagnosis of a mental disorder was not made, and no assessment was made of the occupational and social impairment of the Veteran’s reported symptoms. The Veteran also underwent a VA examination in November 2010. The November 2010 VA examiner reported that the Veteran’s reports of killing a number of people with a bowie knife over a prolonged period of time during Vietnam raised credibility concerns. The VA examiner also reported credibility concerns with the Veteran’s reported symptoms. The Veteran reported a number of stereotypical PTSD-related symptoms without being asked, which the examiner opined was a “reporting style of those with a response bias agenda but not of genuine reporters.” The Veteran reported several symptoms which the VA examiner found to be improbable. The November 2010 examiner found that the Veteran was malingering psychiatric symptoms, so it was not possible to provide diagnosis or prognosis. In a private psychiatric evaluation performed in April 2014, the Veteran reported symptoms of nightmares and flashbacks, avoidance of stimuli such as the beach or loud noises and television programs about war, as well as increased psychological arousal and an exaggerated startle response. He reported that he has “no joy in life at all,” that his appetite fluctuates with his mood, and that he has poor concentration. Although the Veteran reported “frequent” suicidal ideation, he said he would not commit suicide because it is a mortal sin. He reported mild hallucinatory experiences where he heard voices and seen vague shapes and shadows. He reported no psychiatric hospitalizations, but that he undergoes individual therapy. Although VA treatment records indicate that the Veteran consistently denied suicidal or homicidal ideation, the treatment records contain at least one “positive” suicide screening in June 2019 which showed suicidal ideation in the last two weeks, and the Veteran reported two prior suicide attempts in 1981 and 1999. A July 2015 clinic note indicates that the Veteran reported two prior suicide attempts, but that he denied current suicidal ideation. In a November 2013 clinic note he denied suicidal ideation and reported that, as a Christian, he does not believe in suicide. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. In terms of occupational and social impairment, the Board finds that the Veteran’s symptoms, at worst, caused occupational and social impairment with reduced reliability and productivity. Thus, the Board finds that a 50 percent rating is most appropriate. While the Veteran did experience symptoms contemplated by a 70 percent rating—such as reported suicidal ideation and a remote history of suicide attempt, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Although he reported frequent suicidal ideations in his April 2014 private evaluation, mental health treatment records from the same period consistently reported that the Veteran denied suicidal ideation. In his July 2019 VA examination he reported passive death wishes but denied active intent or a plan to harm himself, and the VA examiners in his prior VA examinations found the Veteran to be malingering. Similarly, while he at times reported hallucinations, medical records frequently reflect that he explicitly denied hallucinations, both during screens and on full mental status examinations. The Board finds these treatment records to be probative evidence of his mental state at that moment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (Federal Rule of Evidence 803(4) expands the hearsay exception on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). In sum, the Board finds that the medical evidence of record, including the Veteran’s multiple VA psychological evaluations, the Veteran’s private psychiatric evaluation, and the Veteran’s VA treatment records from, show that the duration of the Veteran’s reported symptoms, including the times when he reported suicidal ideation and hallucinations, has not been of the frequency or severity to more nearly approximate the level contemplated by the 70 percent disability rating. The evidence of record shows that the Veteran did not suffer from symptoms such as obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; that would cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Thus, a disability rating in excess of 50 percent is not appropriate and the Veteran’s claim for a disability rating in excess of 50 percent is denied. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. A TDIU may be granted where the schedular rating is less than total, but when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran’s only service-connected disability is PTSD, and he is rated at 50 percent disabled. As such, because the Veteran does not have at least one disability rated at 40 percent or more and the combined rating is not 70 percent or more for this period of appeal, the combined rating percentage criteria for TDIU consideration under 38 C.F.R. § 4.16 (a) are not met. Although the Veteran does not meet the rating requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16 (a), a TDIU may be granted alternatively on an extra-schedular basis under § 4.16(b) if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities. However, the Board is precluded from granting a TDIU on an extra-schedular basis in the first instance and must refer the matter to the Director of Compensation Service for the initial adjudication. See 38 C.F.R. § 4.16 (b); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director of the Compensation Service or designee determines that an extra-schedular TDIU is not warranted does the Board then have jurisdiction to decide the extra-schedular claim on its merits. The Board also finds that a referral to the Director of the Compensation service is appropriate due to conflicting evidence in the record. The Veteran testified at his October 2018 Board hearing that he has not worked since 2014, and that he lost his job because of his PTSD symptoms. The Veteran similarly reported on his VA Form 21-8940, received by VA in April 2019, that he last worked in November 2014 at Lowe’s. However, the Veteran told a July 2019 VA examiner that he last worked two years prior to the July 2019 VA examination, and that he quit that job because the owner wanted to reduce his wages. He further reported that he applied for a maintenance job at an apartment complex during the same week as the July 2019 VA examination. Due to the discrepancy in information provided regarding the Veteran’s employment history, as well as the Veteran’s testimony that he lost his job due to his PTSD symptoms, the issue of entitlement to a TDIU is being referred to the Director of the Compensation Service for initial adjudication. The matters are REMANDED for the following action: Refer the issue of entitlement to TDIU to the Director of Compensation Service for consideration of assignment of an extraschedular rating for TDIU, pursuant to 38 C.F.R. § 4.16 (b). (Continued on next page) Prior to submission of the claim to the Director of Compensation Service, prepare a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue of entitlement to TDIU. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.